CRS Annotated Constitution

The Doctrine
Before Baker v. Carr.—Over the years, the political question doctrine has
been applied to preclude adjudication of a variety of
issues. Certain factors appear more or less consistently
through most but not all of these cases, and it is perhaps
best to indicate the cases and issues deemed political
before attempting to isolate these factors.[p.690]

(1) By far the most consistent application of the
doctrine has been in cases in which litigants asserted
claims under the republican form of government
clause,526 whether the attack was on the government
of the State itself527 or on some manner in which it
had acted,528 but there have been cases in
which the Court has reached the merits.529

(2) Although there is language in the cases that would
if applied make all questions touching on foreign affairs
and foreign policy political,530 whether the
courts have adjudicated a dispute in this area has often
depended on the context in which it arises. Thus, the
determination by the President whether to recognize the
government of a foreign state531 or who is the
de jure or de facto ruler of a foreign state532
is conclusive on the courts, but in the absence of a
definitive executive action the courts will review the
record to determine whether the United States has accorded
a sufficient degree of recognition to allow the courts to
take judicial notice of the existence of the
state.533 Moreover, the courts have often
determined for themselves what effect, if any, should be
accorded the acts of foreign powers, recognized or
unrecognized.534 Simi[p.691]larly, the Court when dealing with treaties and the
treaty power has treated as political questions whether
the foreign party had constitutional authority to assume a
particular obligation535 and whether a treaty has
lapsed because of the foreign state’s loss of
independence536 or because of changes in the
territorial sovereignty of the foreign state,537
but the Court will not only interpret the domestic effects
of treaties,538 it will at times interpret the
effects bearing on international matters.539
The Court has deferred to the President and Congress with
regard to the existence of a state of war and the dates of
the beginning and ending and of states of belligerency
between foreign powers, but the deference has sometimes
been forced.540

(3) Ordinarily, the Court will not look behind the
fact of certification that the standards requisite for the
enactment of legislation541 or ratification of a
constitutional amendment542 have in fact been met,
although it will interpret the Constitution to
deter[p.692]mine what the basic standards
are,543 and it will decide certain questions if
the political branches are in disagreement.544

(4) Prior to Baker v. Carr,545 cases
challenging the distribution of political power through
apportionment and districting,546 weighed
voting,547 and restrictions on political
action548 were held to present nonjusticiable
political questions.

From this limited review of the principal areas in
which the political question doctrine seemed most
established, it is possible to extract some factors that
seemingly convinced the courts that the issues presented
went beyond the judicial responsibility. These factors,
necessarily stated baldly in so summary a fashion, would
appear to be the lack of requisite information and the
difficulty of obtaining it,549 the necessity for
uniformity of decision and deferrence to the wider
responsibilities of the political departments,550
and the lack of adequate standards to resolve a
dispute.551 But present in all the
political cases was (and is) the most important factor, a
“prudential” attitude about the exercise of judicial
review, which emphasizes that courts should be wary of
deciding on the merits any issue in which claims of
principle as to the issue and of expediency as to the
power and prestige of courts are in sharp conflict. The
political question doctrine was (and is) thus a way of
avoiding a principled decision damaging to the Court or an
expedient decision damaging to the principle.552

529
All the cases, however, predate the application of
the doctrine in Pacific States Tel. Co. v. Oregon,
223 U.S. 118 (1912). See Attorney
General of the State of Michigan ex rel. Kies v.
Lowrey,
199 U.S. 233, 239 (1905) (legislative
creation and alteration of school districts “compatible”
with a republican form of government); Forsyth v. City
of Hammond,
166 U.S. 506, 519 (1897) (delegation of
power to court to determine municipal boundaries does
not infringe republican form of government); Minor v.
Happersett, 21 Wall (88 U.S.) 162, 175–176 (1875)
(denial of suffrage to women no violation of republican
form of government).

550
Thus, see, e.g., Williams v. Suffolk Ins. Co., 13
Pet. (38 U.S.) 415, 420 (1839). Similar considerations
underlay the opinion in Luther v. Borden, 7 How. (48
U.S.) 1 (1849), in which Chief Justice Taney wondered
how a court decision in favor of one faction would be
received with Congress seating the representatives of
the other faction and the President supporting that
faction with military force.